Copyright Notice

Law School Hiring and Political Bias

I am learning a lot about hiring practices at UCLA, thanks to Steve Bainbridge's informative posts. I am particularly struck by his posting on "the anti-conservative bias [in law school hiring] as institutional phenomenon." I am inclined to agree that law school hiring is more politically driven than hiring elsewhere in the academy, but Professor Bainbridge's post, following up on Professor Reynolds's on the same topic, leads me to think that differences between institutions may matter a lot. In particular, I don't think his explanation of the institutional basis for the bias phenomenon is generally applicable. I've interspersed my observations on the process with Bainbridge's in what follows.

(Note: I've been on the law school Appointments Committee at Texas every year since 1996, except for one [98-99, when I was at Yale], and I've Chaired both the whole committee and the laterals subcommittee. I also advise UT alums on the teaching market. I've had more than my share of experience with this process, it's fair to say. [I've also served on the Search Committee in philosophy a couple of times, and of course know a good bit about the philosophy job market independently of that.])

Bainbridge: "[T]he bulk of the [junior hiring] process consists of winnowing down well over 1000 applications to a list of 25 or so candidates to meet at the so-called 'meat market' [hiring] convention. Those 25 are then further winnowed down to 3-5 for on-campus interviews...."

Leiter: This is slightly misleading in one respect: while it's true that 1,000 or so candidates will submit resumes through the AALS hiring service each year, two-thirds of them are plainly non-starters, and win universal acclaim for being ignored. What makes them non-starters? Law degrees from law schools other than the 15-20 that produce law teachers. Mediocre law school records. No academics as references. No reputable scholars as reference. And so on.

Here's a harsh fact (Texas is typical of top schools in this regard, but may not be typical of all schools): year-in and year-out, we'll interview about 30 rookies at the "meat market." Of those 30, at least half, and sometimes two-thirds, will have graduated from just two law schools: Yale and Harvard. 2-4 each year will come from Chicago and 2-4 from Stanford. 1-2 of those we interview each year will be from each of the following: Columbia, NYU, Virginia, Michigan, Texas, Berkeley, sometimes Penn or Georgetown or Northwestern or USC, more rarely Cornell or Duke or UCLA. Occasionally we'll interview someone from Minnesota or Iowa or Wisconsin (often a JD/PhD). A third to half the candidates we interview will have a PhD in some other discipline (economics most often, followed by history, followed by philosophy and political science). Nearly every single candidate we interview will have published an article since graduating law school. Add up those "typical" credentials, and it turns out that 2/3rds of the AALS pool isn't even in the game.

Bainbridge: "The hiring process is almost entirely negative. You spend the vast majority of your time winnowing the application pile--i.e., finding reasons not to hire someone. If you have on-site interviews of 0.3% of the applicant pool, any opposition by any member is enough to exclude someone. At the early stages of the process, they barely need to posit a reason."

Leiter: I think I understand Steve's point here, but the idea that the "hiring process is almost entirely negative" struck me as an odd way to put it: it's not like the default position is that anyone gets hired. At every stage of the process, it seems to me that the question isn't the negative one, but an affirmative one: what is the reason to interview X at the meat market? what is the reason to have X back to campus? what is the reason to make X an offer? An affirmative case has to be made. It's true that, very very early in the process, someone can give a AALS resume a low mark without much explanation, and that may end things. But unless hiring committees are very badly constituted, I can't see that being the norm. If my colleague Professor Politically Correct wants to throw a resume on the trash heap, while my colleague Professor Free Market Utopian thinks the resume has come straight from Posnerian Heaven, then there is going to be a discussion, and arguments will have to be made. It doesn't take a "critical mass" for this to happen; it just requires that the Committee not be made up of drones or clones.

In our process at Texas, a subcommittee of four--always four with a track record for high intellectual standards and diversity of expertise--makes the initial cuts on rookie candidates, usually identifying 15-20 straight off that we have to interview, and another 30-40 whose work we need to read, whose references we need to contact. We recently went through this process, and settled on 29 candidates to interview. With respect to 90% of them, I have no idea what their politics are. I do think our process is less intellectually corrupt than is the norm at law schools, but I really don't think we're that far off normal practice. (It's true that in law, unlike philosophy, you can more often read politics off the intellectual interests and published work. If a young philosopher of mind thinks Davidson's anomalous monism has the resources to deflect Kim's charge of epiphenomenalism, that doesn't shed much light on whether he votes Republican or not. Another difficulty in law is that conservatives have now developed a rather tight professional network via the Federalist Society and the judges who pick their clerks from that network, so that conservative activists and ideologues often wear these credentials on their sleeves. I'm not sure it's bias to be wary of ideologues, but it's certainly true that academic conservatives in law tend to have certain "markers" that makes it rather too easy to spot the "true believers.")

Bainbridge: "This is where the critical mass problem comes in....[F]or a candidate to survive the winnowing process, somebody has to pull their resume out of the slushpile and make sure it gets flagged for close review. Because most law schools lack a critical mass of libertarian and conservative faculty members, there is nobody predisposed to pulling conservative candidates' AALS forms out of the slushpile (and a fair number of folks inclined, whether consciously or subconsciously, to bury it)."

Leiter: Here we get to the heart of the problem with the analysis. First off, there is the assumption that every AALS resume has a political label stamped on it; the vast, vast majority don't. As noted above, I've no idea what the politics are of 90% of the rookie candidates we're seeing. What I do know is that 100% of them are above the high threshold noted above (in terms of pedigree, references, publications, etc.). Second, there is the assumption that a school needs a "critical mass" of conservative faculty for those blatantly conservative candidates to get a fair hearing. Actually, all it takes is one conservative on an Appointments Committee whose smart and whose colleagues respect his or her judgment (actually, all it really takes is one intellectually honest committee member). If the Chair of Appointments is a conservative, then the process may be, if anything, tipped to the right (since conservatives appear to have a siege mentality--witness the self-pity fest inspired by the Brooks column--and thus appear more likely to over-compensate when they have an influence on hiring). Tennessee and Illinois and Texas aren't notably right-wing faculties, but each school has, this year, a conservative or libertarian as Chair of its Appointments Committee. Law-and-economics scholars are often, given the prestige of the field, appointments chairs; it's fair to say they aren't known for their affection for Critical Race Theory and New Deal Democrats. And so on.

Bainbridge: "Meanwhile the latest left-leaning prodigy from Harvard or Yale has a mentor at one of those schools who makes calls to his/her buddies and ideological soulmates at other law schools."

Leiter: No doubt this goes on at a lot of places--and especially, I suspect, at UCLA, which has one of the oddest compositions of any major law school faculty (you have large contingents [far larger than most schools] of Critical Race Theorists, feminist legal theorists, Critical Legal Studies scholars...but also major legal traditionalists/doctrinalists like Nelson and Yeazell...and then conservatives like Bainbridge and Volokh--how they agree on anything I don't know!). But I must say this remark amused me especially, since, with occasional exceptions, the left-leaning faculty at Harvard or Yale are on my (private, I'm afraid) blacklist of "utterly unreliable references." (Some of them also run afoul of my rule that, "If we won't hire the reference, we shouldn't hire the candidate referred"--but I can't quite persuade my colleagues to adopt that rule officially.) They're on that list not because I'm leading the charge for social conservatism and free-market utopianism; I suspect anyone who has read this blog knows that isn't the case. They're on it because they have no intellectual standards or, if they do, because they don't tell the truth about the candidates.

If I were asked to name, off the top of my head, the recommenders I find particularly reliable, the ones I return to year after year, a few names come to mind right away: Saul Levmore (Chicago), Alan Schwartz (Yale), Dick Posner (Chicago), Cass Sunstein (Chicago), Ian Ayres (Yale), Roberta Romano (Yale). There are others, to be sure (including some people who are social, as well as professional, friends). But this group isn't exactly the vanguard of the revolutionary left. The most liberal members are Sunstein and Ayres, and they're far to my right on most issues.

It may well be true at UCLA that the "left-leaning good 'ole boy/girl network" has a big impact on hiring; it's not true here. It's not true at other places either.

Many scholarly issues in law are overtly political, and it's tough sometimes to disentangle the politics from the law. Academic law is intellectually diffuse, and there are thriving scholarly movements which are held in intellectual contempt by others in the legal academy (indeed, sometimes on the same faculty). Academic law is subject to rather idiotic fads--the faddish infatuation with deconstruction (a fad of the left) was one; the more recent faddish infatuation with evolutionary psychology (a pseudo-science, which is currently a fad of the right) is another. There are many institutional peculiarities about hiring in law schools, but I don't think an anti-conservative bias is one of them. I do think there is a political bias in a lot of law school hiring, to be sure, I just don't think the explanation is institutional--it really depends on the individuals at play in different institutions.

The perhaps harsh truth--the "truth is terrible" as Nietzsche says--is that I am hard-pressed to think of conservatives who are "underplaced" in the legal academy (by which I mean someone who "ought" to be at UCLA, but is instead at McGeorge, etc.--I'm not talking about someone at school #22 who really "ought" to be at school #11--that's true of tons of people, and it doesn't break down along political lines). What I can think of is lots of faculty who are way "overplaced" in virtue of their trendy "identity politics." The bigger issue in the legal academy probably isn't, at the end of the day, bias against conservatives and libertarians (there's some here and there, but right-wingers do damn well); it's bias in favor of certain kinds of mindless identity politics, which benefits candidates who otherwise wouldn't be employable.